Editor's Note :

We are expecting one or more decisions in argued cases tomorrow at 10 a.m. We will be live-blogging the opinion(s) as they are released. However, there is no live blog of tomorrow’s oral argument in King v. Burwell. We will have coverage of that argument as soon as possible after it is finished; the transcript should be available tomorrow afternoon, and the audio will be available on Friday. Wednesday's live blog will be available here.

Major tests on religion shaping up

Posted Sat, August 24th, 2013 12:03 am by Lyle Denniston

Analysis

With the Supreme Court already committed to rule on a major new test of the constitutional roles of religion and government, the prospect of additional cases reaching the Court now suggests that the next Term will be a significant one for the First Amendment’s two religion clauses.

The First Amendment protects the “free exercise” of religion, even as it forbids the government from “establish[ing]” one religion as the favorite, but it has not been easy for the Court to interpret the two without sometimes making them seem to clash. Can the government regulate some religious practices and yet remain neutral about issues of faith? Can it compel or forbid actions by religious believers without undermining their faith?

The Court will move back into this deeply controversial field on November 6, when it holds a hearing on the issue of religious prayer as a part of government activity. Soon there will be at least one, and probably more, cases asking the Court to decide whether a business firm owned by devout believers has a right to operate the company on religious principles — in other words, can a profit-making company “exercise” religion?

And, it now appears, there will be a case on the right of a business operated by a religious family to refuse to deal with gays or lesbians. An appeal is expected from a decision issued on Thursday by the New Mexico Supreme Court, finding that a Christian operator of a commercial photography business violated a state anti-discrimination law by refusing to take photos of a wedding-style ceremony of a lesbian couple. (New Mexico law does not allow same-sex marriage.)

The first of the new religion cases is Town of Greece v. Galloway(docket 12-696), which the Court on May 20 agreed to review in the coming Term. It involves the practice of the town council in an upstate New York community of opening its meetings with prayers led by members of the clergy or local citizens. That practice was struck down by the Second Circuit Court, under the First Amendment’s Establishment Clause. The content of the prayers, that court said, created the impression that the city government endorsed the Christian faith.

That case may well be crucial to future cases under the Establishment Clause, because lawyers for the town are urging the Court to rule that government-meeting prayers should only be forbidden if they actually coerce someone into believing the message. That would replace the “endorsement” test that the Second Circuit applied. The coercion test would generally be harder to prove against prayers in government settings.

The equally fundamental question of who may hold religious beliefs that are protected under the First Amendment’s Free Exercise Clause is headed for the Court, perhaps in multiple appeals, over some five-dozen lawsuits across the country challenging the so-called birth-control mandate in the new federal health care law. The Affordable Care Act requires businesses with more than fifty employees to provide health insurance that covers methods of contraception and reproductive health screening.

The federal courts of appeals have now reached conflicting rulings on whether a profit-making corporation has a “free exercise” right to refuse to provide insurance benefits that would cover the cost of abortions, because the corporation itself is run on anti-abortion religious principles. The Third Circuit Court said religion is personal, and not something a business “exercises,” but the Tenth Circuit Court disagreed. Other circuits are poised to rule in coming weeks on that question.

The Supreme Court has never ruled on a case involving “free exercise” claims by a profit-making company organized for ordinary business activity. Justice Sonia Sotomayor noted the absence of any such ruling by the Court when she refused, last December, to block temporarily the enforcement of the contraceptive mandate in the case that led later to the ruling by the Tenth Circuit in favor of the company’s rights.

When the lower appeals courts are divided on an issue, as in this instance, the chances are very strong that the Supreme Court will step in to decide the issue finally. Moreover, the federal government is expected to be among those filing appeals on the issue, and government appeals are often given priority when the Court takes on an issue.

The third religion-government issue that seems to be on its way to the Court imminently would test the extent of the government’s power to apply laws against discrimination aimed at gays and lesbians to business firms that refuse — because of their owners’ objection to homosexuality — to deal with such individuals.

The case of Elane Photography v. Willock (New Mexico Supreme Court docket 33,687) arose in a state that does not permit gays and lesbians to marry, although county clerks in Santa Fe and Dona Ana Counties this week began issuing marriage licenses for such weddings. One state judge has ordered clerks to issue such licenses, and the state attorney general has argued that the state ban is unconstitutional.

The validity of same-sex marriage is not at issue, though, in the Elane Photography case. That involves the scope of a state law that forbids businesses operated as places of “public accommodation” to refuse to sell goods or provide services to gays and lesbians, since such business firms are treated as open to serve the public in general.

Elaine Huguenin and her husband, Jonathan Huguenin, are co-owners of a commercial photography business in Albuquerque. They believe in Christian principles and it is a matter of faith with them that they oppose homosexuality. They refuse to take photos that they believe will portray homosexuals in a positive way.

Their studio was approached by an Albuquerque woman, Vanessa Willock, to take pictures at a “commitment” ceremony that Willock planned with her lesbian partner, Misti Collinsworth. Everyone involved in the case regards such a ceremony as the equivalent of a wedding, but same-sex marriages are not legal in the state so same-sex couples do unite in a technically distinct ritual.

The request was denied, because of the Huguenins’ religious views, and Willock then sued under the New Mexico Human Rights Act, which forbids “public accommodations” from discriminating based on a customer’s sexual orientation. A business is covered by the law if it offers goods, services, or facilities to the public.

The New Mexico Supreme Court, in a unanimous ruling Thursday, found that Elane Photography is a place of public accommodation covered by the law, and it rejected a variety of constitutional challenges to enforcing the law against it for refusing to photograph the Willock-Collinsworth ceremony.

The main challenges by the studio’s owners are based on the core argument that photography is a form of artistic expression, and pictures convey symbolic messages of approval or disapproval. To require Elane Photography to take and develop pictures of a same-sex ceremony of union, the company’s lawyers argued, is to compel the owners to embrace a public message that they approve of homosexuality — a message that they reject — and it is a form of direct interference with their freedom to exercise their religious beliefs in their business.

In technical terms, those are arguments against “compelled speech” under the First Amendment’s free-speech guarantee, and against government interference with the owners’ free-exercise rights under that religion clause in the First Amendment. In turning aside those constitutional complaints, the state court said the Supreme Court has upheld the application of neutral anti-discrimination laws against some specific religious practices.

The owners of the studio are represented by lawyers for the advocacy group, Alliance Defending Freedom. The staff attorneys have said they are exploring with the owners their next step — an appeal to the Supreme Court. The petition would be due three months from now; it is likely to raise both the compelled speech and free exercise arguments.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. On Tuesday the Court announced its decision in Direct Marketing v. Brohl. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]